“The Posterity Project: Developing a Method for Long-Term Political Reform”

Ned Foley has posted this draft on SSRN (forthcoming, Oklahoma Law Review). Here is the abstract:

Akhil Amar, at the end of AMERICA’S UNWRITTEN CONSTITUTION (2012), mentions the idea of postponing for a long while the date on which newly adopted constitutional reforms become effective. The rationale for this idea, as Amar explains, is to impose a Rawlsian “veil of ignorance” on the adopters of the constitutional reforms, so that they have less ability to act strategically on behalf of their own descendants. This essay develops how Amar’s idea might best be operationalized. In doing so, it proposes the creation of a nonpartisan Posterity College, with each state sending the same number of members as the state has in the Electoral College. The nation’s two immediate past presidents from different political parties (now Clinton and Bush) would serve as the bipartisan co-chairs of this Posterity College. The essay discusses the procedures that this Posterity College would use for its deliberations, how its members would be appointed, some of the potential reforms it might consider, and how its proposals would become part of the Constitution but taking effect only long afterwards.